Law Commons^™

Symposium - Incomplete Contracts: Judicial Responses, Transactional Planning, And Litigation Strategies - Introduction, Juliet P. Kostritsky

Faculty Publications

This introduction introduces three articles in a Symposium by Richard Craswell, Avery Katz, Robert Scott and George Triantis on the topic of incomplete contracts. The Symposium appears in 56 CASE WES. L. REV. 135 (2005).

The recognition that parties will often fail to achieve completely contingent contracts that provide for an optimal outcome in any future state of the world raises the important question of what role courts could or should play in such contracts.

Scholars working in the law-and-economics tradition have suggested that courts should use a hypothetical bargain approach to incompleteness, filling in terms that are optimal (efficient) …

Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Craig Allen Nard

Faculty Publications

The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …

Back To The Future Of Conservation: Changing Perceptions Of Property Rights & Environmental Protection, Jonathan H. Adler

Faculty Publications

Property rights hold a central place in our Constitutional design and provide the foundation for America's market economy. Admiration of private property has not been universal, however. Some environmental scholars and policymakers have been particularly critical of classical liberal conceptions of private property on both theoretical and practical grounds, suggesting that traditional, classical liberal notions of property rights are incompatible with the demands of environmental protection. These perspectives influenced the development of command-and-control environmental regulation in the 1960s and 1970s. In recent years, however, the perception of private property's role in environmental conservation has begun to change. Disregard for the …

Being The Government Means (Almost) Never Having To Say You’Re Sorry: The Sam Sheppard Case And The Meaning Of Wrongful Imprisonment, Jonathan L. Entin

Faculty Publications

Dr. Sam Sheppard was at the center of the highest profile crime in Ohio history. As the Ohio Supreme Court put it, the case contained "[m]urder and mystery, society, sex and suspense." Sheppard's conviction was overturned by the U.S. Supreme Court in a landmark 1966 ruling, but the controversy over the case continues to the present. The final legal chapter in the story may have been written with an unsuccessful wrongful-imprisonment lawsuit brought by the Sheppard estate in April 2000.

This paper uses the long debate over the Sheppard case as a vehicle for exploring the concept of wrongful imprisonment. …

Errors And Missteps: Key Lessons The Iraqi Special Tribunal Can Learn From The Icty, Ictr, And Scsl, Michael P. Scharf, Ahran Kang

Faculty Publications

In a few months, the trial of Saddam Hussein and other former Iraqi regime leaders will begin before the Iraqi Special Tribunal (IST). The IST is a unique "internationalized-domestic tribunal" whose Statute and Rules of Procedure are modeled upon the UN-created Yugoslavia War Crimes Tribunal (ICTY), Rwanda Genocide Tribunal (ICTR), and the Special Court for Sierra Leone (SCSL), but whose judges are all Iraqis and whose courtroom is in Baghdad. There is much the IST can learn both from the successes and missteps of the ICTY, ICTR, and SCSL; many of the issues that will arise in the trials of …

Owning Persons: The Application Of Property Theory To Embryos And Fetuses, Jessica Wilen Berg

Faculty Publications

Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking.

This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, …

Prometheus Radio Project V. Fcc: The Persistence Of Scarcity, Aaron K. Perzanowski

Faculty Publications

Part I traces the history of broadcast regulation, emphasizing the development of the scarcity doctrine and the subsequent deregulatory trend. Part II examines the FCC's 2003 rule changes and the Third Circuit's analysis of those modifications in Prometheus Radio Project v. FCC. Part III analyzes the assumptions underlying the FCC's proffered explanation for its rule changes, ultimately concluding that they lack justification, and offers suggestions for responsible ownership deregulation. Part IV calls on Congress to reassert itself as the final arbiter of media policy.

Is It Too Late For Title Vi Enforcement?: Seeking Redemption Of The Unequal United States‟ Long Term Care System Through International Means, Ruqaiijah Yearby

Faculty Publications

Legal and medical experts have noted continued racism in the health care system that prevents the equal distribution of quality care. Initially most racism was intentional and expressed through de jure segregation, as evidenced by federal funding of the construction of racial segregated health care facilities. Now most racism, expressed through de facto segregation, is subtly incorporated into the daily practices of institutions causing an adverse disparate impact on African-Americans. This institutional racism establishes separate and independent barriers through the neutral denial of opportunities and equal rights to individuals and groups that results from the normal operations of the institutions …

Race, Trust, Altruism, And Reciprocity, George W. Dent

Faculty Publications

Trust, altruism and reciprocity are attracting growing attention from scholars. Interest began with psychological experiments showing that people often are altruistic, trust others, and reciprocate the benevolence of others far more than economic models of "rational" human selfishness predict. These findings inspired social scientists to discover what factors promote or hinder cooperation. Legal scholars have employed this learning to determine how the law does or could facilitate or discourage cooperation in many contexts, including business transactions and the workplace. The influence of race on cooperation has been studied in specific areas, but so far no one has considered how the …

Is Morrison Dead? Assessing A Supreme Drug (Law) Overdose, Jonathan H. Adler

Faculty Publications

There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary commerce clause jurisprudence. Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the "substantial effects" test, that attenuated connections between …

Do Former Leaders Have An International Right To Act As Their Own Lawyer In War Crimes Trials?, Michael P. Scharf, Christopher Rassi

Faculty Publications

Picture what would happen if former Iraqi dictator Saddam Hussein sought to represent himself at his war crimes trial before the Iraqi Special Tribunal. While doing so, assume that the judge presiding over his case decided to follow the precedent of the Trial Chamber of the International

Criminal Tribunal for the former Yugoslavia (ICTY) that tried the case of Slobodan Milosevic, which held: "[U]nder customary international law, the defendant has a right to counsel, but he also has a right not to have counsel."

Will Saddam Hussein Get A Fair Trial?, Michael P. Scharf

Faculty Publications

Debate between Dr. Curtis F. J. Doebbler and Professor Michael P. Scharf

The Descendants Of Fassihi: A Comparative Analysis Of Recent Cases Addressing The Fiduciary Claims Of Disgruntled Constituents Against Attorneys Representing Closely-Held Entities, Matthew Rossman

Faculty Publications

Accordingly, this Article will examine three recent cases closely and then make observations about what these "descendants of Fassihi" say about the state of the law and how they should impact attorney behavior. To provide proper context for this discussion, a short summary of Fassihi and other contemporary responses to the issues raised in Fassihi follows.

The George A. Leet Business Law Symposium: Corporate Governance: Directors Vs. Shareholders? - Introduction, George W. Dent

Faculty Publications

Introducation to The George A. Leet Business Law Symposium: Corporate Governance: Directors vs. Shareholders?, Cleveland, Ohio.

Genetic Enhancement: Plan Now To Act Later, Maxwell J. Mehlman

Faculty Publications

No abstract provided.

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Faculty Publications

The Supreme Court's jurisprudence concerning public displays of religious symbols is notoriously unpredictable. In this Article, Professor Hill argues that the instability and apparent incoherence of the Supreme Court's religious symbolism jurisprudence is due to certain difficulties inherent in discerning the "meaning" or "message" of a religious display. In particular, she attributes the unpredictability of the jurisprudence to the fact that the meaning of the display is dependent on the "context," which is itself an unmanageable and unformalizable concept. This Article, which draws on insights from literary and linguistic theory, breaks with previous commentators' claims that the difficulties with the …

Comment: The Case For Real Shareholder Democracy, George W. Dent

Faculty Publications

Comment on presentations at The Georege A. Leet Business Law Symposium: Corporate Governance: Directors v. Shapreholders, Cleveland, Ohio, 2005.

Corporate Governance: Still Broke, No Fix In Sight, George W. Dent

Faculty Publications

Dissatisfaction with the governance of public companies is as old as the public company itself, but public concern about corporate governance is spasmodic. Prior reforms did not cure the ills of corporate governance, and there is little reason to think that the recent spate of reforms will be any more effective. The fundamental problem of corporate governance remains what it has always been: the separation of ownership and control. No reform can succeed unless it overcomes this contradiction. Corporate executives determined to preserve their privileges and a number of scholars deny this claim; in effect, these Panglosses consider the status …

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. At the same time, state intervention seeps into areas where a dominant federal role would be more defensible. …

Looking Ahead To The 2005-06 Term (2005), Jonathan H. Adler

Faculty Publications

This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism and …